Dividing Fences

Trees

Retaining Walls

Parking/Towing

Private Short-Term Letting

Presented by Andrew Suttie

for Body Corporate Systems

Dividing Fences

Dividing Fences

Dividing fences are dealt with under the

Neighbourhood Disputes (Dividing

Fences and Trees) Act 2011.

The definition of dividing fence is very

broad (even includes a moat) but does not

include retaining walls or part of a wall that

is a house, garage or other building

Dividing Fences

• A dividing fence must be on the

common boundary of adjoining land (or

elsewhere if it is impracticable to

construct a fence precisely on the

boundary)

• Neighbours must contribute equally to

building and maintaining a dividing

fence

• Pool fences are regulated under the

Building Act 1975

Dividing Fences

If there is no sufficient dividing fence between two parcels of adjoining land, an adjoining owner is liable to contribute to carrying out fencing work for a sufficient dividing fence.

Adjoining owners are generally liable to contribute equally

An adjoining owner who wants a fancy fence has to pay the difference between that and a sufficient dividing fence

Dividing Fences

A sufficient dividing fence is:

• Between 0.5m and 1.8m in height

• Consists substantially of prescribed

material (wood, chain wire, metal panels or

rods, bricks, rendered cement, concrete

blocks, hedge or other common materials)

• The owners agree it is a sufficient dividing

fence

• QCAT decides it is a sufficient dividing

fence

Dividing Fences

Probably not a sufficient dividing fence

Dividing Fences

Definitely not a sufficient dividing fence

Dividing Fences

Not a sufficient dividing fence, but brilliant!

Dividing FencesBefore you build, demolish, alter or attach something to a dividing fence and before you seek a contribution from the adjoining owner you need to:

• Notify the adjoining owner (Notice to Contribute) and obtain their consent; or

• Obtain an order from QCAT

However, if urgent fencing work is required because the dividing fence has been destroyed or damaged and it is impracticable to give notice to the adjoining owner, you needn’t obtain their consent to restore the fence to its previous condition (but you might need to go to QCAT to get their contribution)

Dividing FencesIn community titles schemes:

• Where the dividing fence is between a lot

and common property, the adjoining

owners are the owner of the lot and the

body corporate

• Where the dividing fence is between 2 lots,

the adjoining owners are the 2 lot owners

• Where the dividing fence is between a lot

and a property outside the scheme, the

adjoining owners are the body corporate

and the owner of the neighbouring property

• However, a by-law can change the above

obligations.

Trees

Trees

Disputes about trees are also dealt with under

the Neighbourhood Disputes (Dividing Fences

and Trees) Act 2011.

The definition of tree is also very broad and

includes any woody perennial plant or any

plant resembling a tree in form and size such

as a shrub, bush, vine, bamboo, banana plant,

palm or cactus. It also includes a bare trunk, a

stump rooted in the land and a dead tree.

Trees

A tree-keeper has responsibilities and obligations

under the Act.

You are a tree-keeper if a tree is wholly or mainly

situated on your land. So, even if the tree is partly

located on the boundary between two lots, if most of

the tree is located on your lot, you are liable as the

tree-keeper.

Trees

If the tree is located centrally on the boundary of two

or more lots, each lot owner shares the responsibilities

and liabilities equally

Trees

A tree-keeper must:

• Cut and remove any branches overhanging

its neighbour’s land (subject to any

vegetation protection order – check at

Council for those)

• Ensure the tree does not cause, or is not

likely to cause within the next 12 months:

• Serious injury to anyone

• Serious damage to the neighbour’s land

or personal property

• Unreasonable interference with the

neighbour’s use and enjoyment of their

land

Trees

Unreasonable interference includes:

• Interfering with TV or satellite reception

• Interfering with proper functioning of solar panels

• Shades sunlight from the window’s or roof of the

neighbour’s property where tree branches are

more than 2.5m above the ground

• Obstructs a view that existed when the neighbour

took possession of the land if the tree branches are

more than 2.5m above the ground

• Creates a substantial and ongoing accumulation of

tree litter in their yard

• Normal amounts of tree litter (dropping leaves and

fruit) will not constitute unreasonable

interference)

Trees

If your neighbour’s tree has overhanging branches,

the common law right of abatement entitles you to

remove the overhanging parts (and you no longer

need to return them to the tree-keeper)

Alternatively, you can use the formal process under

the Act

TreesThe formal process applies only if the branches are

extending at least 50cm from the boundary and are no

more than 2.5m above the ground (for branches

higher than that – QCAT)

The neighbour can give the tree-keeper a Notice for

removal of particular hanging branches requesting it

remove the branches within (at least) 30 days

The notice must include a quote for someone else to

do the work

The notice gives the tree-keeper permission to enter

the neighbour’s land once the tree-keeper has agreed

to do the work and has given the neighbour a formal

response advising when the work is to be done and

the name of the person doing the work

TreesIf the time in the notice has elapsed and the tree-

keeper has not responded, the neighbour may remove

the branches or engage a contractor to remove them

and can claim up to $300 from the tree-keeper

(annually)

If the costs are not paid by the tree-keeper, the

neighbour can make an application to QCAT (minor

debt claim)

TreesIn a community titles scheme:

• If the tree is located on a lot, the tree keeper is the

owner of the lot

• If the tree is located on common property, the tree

keeper is the body corporate

• If the tree is located on a lot outside the scheme

and is affecting a lot or common property within

the scheme, the neighbour is the body corporate

• A by-law cannot alter the rights and obligations of

tree-keepers and neighbours under the Act

Retaining Walls

Retaining Walls

• A retaining wall is a structure that supports

excavated or filled earth

• An owner of land must not cause support to

be withdrawn from any other land or

building on the land (s179 Property Law Act

1979)

• An infringement of s179 is actionable in

nuisance. A nuisance claim may also arise

under the common law

• Remedies are damages and/or an injunction

to stop the act threatening withdrawal of

support.

Retaining Walls

• Where land is filled without providing an

adequate retaining wall and this causes soil

to fall on adjoining land and/or cause

damage to buildings, the owner is liable in

trespass at common law (and possibly in

nuisance).

• Retaining walls are also subject to planning

laws and may require development

approval (e.g. height of more than 1

metre).

Retaining Walls

Unlike the position with dividing fences,

usually the owner who derives the greater

benefit will be liable for the costs of

maintaining, repairing and replacing the wall

… so it’s often not clear who is responsible for

maintaining retaining walls

Parking/Towing

Parking/Towing

Problems:

• By-laws can’t impose monetary liability on

owners or occupiers

• By-laws can’t be oppressive or

unreasonable

• Committee has to make decisions that are

reasonable

• Body corporate is responsible for enforcing

the by-laws (and has to observe due

process)

• Body corporate cannot delegate its powers

(so building manager cannot “enforce” by-

laws)

Parking/Towing Problems:

• Dispute resolution process in the BCCMA is

not effective to resolve parking disputes:

• Can’t impose fines

• Can’t tow

• Can’t delegate enforcement to building

manager

• Too slow to get an outcome –

particularly ineffective for emergencies

(i.e. vehicle blocking car park entry)

Parking/Towing

Parking/Towing

What can be done?

• Weigh up risk vs outcome:

o there is a risk that if someone’s car

is towed the owner will sue the

body corporate for the towing cost

o Reduce the risk by adopting a by-

law that enables the body

corporate to tow illegally parked

vehicles – ensure there is a process

including display of prominent

signage, log registration details,

give warnings before towing

Parking/Towing

What can be done?

• If an illegally parked car is owned by

someone who is not an owner or

tenant (or their guests) – then the

validity of the by-law is irrelevant

because that owner has no standing

under the BCCMA

Parking/Towing

The Building Manager’s role

• Caretaking duties in respect of by-law

enforcement have been eroded

because of the prohibition on

delegation by the body corporate

• Good building managers implement

systems to deal with illegally parked

vehicles and the by-laws consequently

never need to be “enforced”

Private Short-Term Letting

What’s the big deal?

Possible higher use of common facilities by guests

= greater (unaccounted) cost to body corporate

What’s the big deal?

Possible less sense of responsibility by guests

= nuisance to others

What’s the big deal?Guests unfamiliar with property

= safety issues

If the Body Corporate doesn’t want short-term letting, what can it do?

• Change it’s by-laws?

NO CAN DO!

Body Corporate Laws

Section 180(3) of the BCCMA:

If a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of

residential use.

Body Corporate Laws

Can we amend the by-laws so short-term renters are banned from having parties and from using the pool and other facilities?

NO CAN DO!

Body Corporate Laws

Section 180(5) of the BCCMA:

A by-law must not discriminate between types of occupiers.

Body Corporate Laws

Can we impose a bond on an owner who wants to operate short-term letting in their lot and fines for renters who misbehave?

NO CAN DO!

Body Corporate Laws

Section 180(6) of the BCCMA:

A by-law (other than an exclusive use by-law) must not impose a monetary liability on the owner or occupier of a lot included in a community titles scheme.

Body Corporate Laws

What can a body corporate do under the BCCMA to deal with problems arising from short-term letting?

• Review by-laws • Noise

• behaviour

• Parking

• Use of common facilities

• Nuisance provisions

• Dispute resolution (but timing issues!)

Body Corporate Laws

Any Questions?